Shielding the Messengers: Protecting Platforms for Expression and Innovation

This paper examines the impact on free expression, privacy, and innovation of forcing Internet intermediaries to bear liability or assume gatekeeping obligations for third-party content. Intermediary liability arises where governments or private litigants can hold technological intermediaries such as ISPs and websites liable for unlawful or harmful content disseminated by users of those services. Gatekeeping obligations, such as requirements that intermediaries filter or block access to content, force intermediaries to monitor or limit how users access or post material. The threat of either liability or gatekeeping obligations reduces intermediaries’ willingness to host user-generated content, leads intermediaries to block even legal content, and inhibits innovation. Limiting such obligations and protecting intermediaries from liability for the expressive actions of third parties expands the space for online expression, encourages innovation in the development of new communications services, and creates more opportunities for local content, thereby supporting development of the information society. Meanwhile, there are ways to address unlawful or harmful online content without burdening intermediaries. Internet advocates everywhere should urge governments to adopt policies that protect intermediaries as critical platforms for innovation, expression, and economic activity.